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that the property be leased and pre- This lease stipulated that the grantscribe the royalty to be paid. Sec- ors, in consideration of certain

, tions 5, 6, 7, and 8 relate to the royalties provided for, leased all of practice and procedure, and pre- the coal in and under the land to the scribe the descent of the estate upon coal company for a period of forty the death of the infants or person years, with the privilege of renewof unsound mind, without having al for an additional term of forty disposed of the same. In § 9 it years. The lease further contained was provided that the guardian, a number of stipulations providing curator, or committee should settle for the use and occupation of the from time to time his accounts “and property by the coal company to upon the infant becoming of age or enable it to mine and deliver the the person of unsound mind becom- coal, and then provided that the ing of sound mind shall make a lessee should pay to the lessors, durfinal and complete settlement of all ing the continuance of the lease, or amounts received under such lease, any renewal thereof, a royalty of 10 and account for the same as herein cents for each ton of coal produced and by law provided; and shall from the land and 15 cents for each thereupon be discharged from fur- ton of coke that might be manufacther duty or accountability as such tured on the premises, the minimum guardian or committee. Thereaft- royalty to be $5,000 for the first er the rights and obligations of year, $10,000 for the second, and such former infant or person of un- $15,000 for the third, and each year sound mind and the lessee shall be thereafter. the same as if the lease had been After this, the infants were propexecuted originally to the lessee byerly brought before the court and a a person over twenty-one years of guardian ad litem was appointed to age and free from any disability." represent them, and he filed a re

In 1917 Jesse D. Kash, as stat- port reciting that, in his opinion, utory guardian of Octavia, Jake, the lease would be beneficial to

, and Ike Smith, filed his petition in them. Thereupon

Thereupon evidence was the Pike circuit court against these taken supporting the averments of infants, averring that Octavia was the petition, and afterward the eleven, Ike sixteen, and Jake court rendered a judgment authoreighteen, years of age; that they izing the guardian, Kash, to lease

, were the owners of about 2,500 the land for a period of forty acres of land devised by the will of years, with the privilege of renewJacob Smith, in 1906, to their fath- al for forty years for the purpose of er for life, with remainder to them mining and removing coal therein fee; that the land was unfit for from, with the usual privileges concultivation on account of its rough tained in such leases. The judgment and mountainous character, and its · further recited that the conditions sole value consisted in the coal of the lease filed with the pethereon; that the infants have no tition were reasonable and satisincome, and if they were permitted factory, and that the guardian to lease the coal and mining rights should lease the coal privileges in in the land the royalty derived the land under and according to therefrom would be sufficient to ed- the terms of the form of lease filed ucate and maintain them; he prayed with the petition at public outcry, that the court enter a decree author- reserving to the court the right to izing him to lease the property for reject any and all bids. Following coal-mining purposes, pursuant to this, the privileges as set out in the the terms of a lease proposed to be lease filed with the petition were made between these infants by sold pursuant to the judgment, and Kash, as their guardian, of the one the Lawrence E. Tierney Coal Compart, and the Lawrence E. Tierney pany, being the only bidder, became Coal Company of the other part. the purchaser under the terms of (180 Ky. 815, 203 $. W. 731.) the lease heretofore referred to. estate of the ward till the ward Formal exceptions were filed to the shall arrive at full age; but no such report of sale by the company and lease shall be made for a longer overruled, and it prosecutes this ap- term than seven years.” So that peal for the purpose of having the before the Act of 1916, a court of correctness of the judgment and the equity could not lease for a longer rulings of the court in respect to term than the minority of the inthe exceptions determined by this fant his real estate or any interest, court in order that there might be mineral or otherwise, therein, nor no questions about the validity of could his real estate, or any part the lease, and its rights and privi- thereof or interest therein, be sold leges thereunder. It may here be for any purposes

except those remarked that the proceedings had pointed out in the statutory proin the lower court were in conform

visions referred to. ity with the provisions of the act, and so, if there were no objections the state, as expressed in legislative

It had always been the policy of to its validity, the judgment should be affirmed.

enactments and court opinions, to At this point we may digress a

guard with jealous care the propmoment to briefly review the state

erty rights of infants and persons of the law previous to the Act of under disability, but it was never 1916. In $489–498 of the Civil thought that the courts had any Code, provision is made for the sale power to undertake to regulate or of the real estate of infants and control in any manner, by proceedpersons of unsound mind. But the ings brought during infancy, the sale of the real estate of infants and estate after the infant had arrived persons of unsound mind, under at full age, or the disability was rethese Code provisions, is only allow- moved. When either of these conable: (1) For the purpose of pay- tingencies happened, then the pering a debt of the ancestor with son who had been an infant, or who which the infant or person of un

had been laboring under some legal sound mind may be chargeable; (2) disability, was restored to his rightfor the purpose of paying the debts ful status as a citizen of the state of the infant or person of unsound

entitled to the free and unrestrained mind; (3) for the maintenance and use and management of his propeducation of the infant, and the erty to the same extent as that of maintenance of the persons of un- any other person of full age and sound mind and their families; (4)

sound mind. But the Act of 1916 for purposes of reinvestment in oth- undertook to make a radical and er property. It has also been fre- sweeping change in this timequently and consistently held that honored public policy of the state, courts of equity have no inherent and to give to circuit courts having power to sell, for any purpose, the general equity jurisdiction powers Equity-power

real estate of in- not only to regulate and control the to sell infant's fants or persons of estates of infants and persons of unreal estate.

unsound mind, and sound mind during the infancy or that when it is sought to sell their period of disability, but to project real estate express authority for this regulation and control far bethe sale must be found in statutory yond the time theretofore prescribed provisions, and these provisions and long after the infant had armust be strictly complied with.

complied with rived at age, or the disability had Walker v. Smyser, 80 Ky. 620; been removed; and the question is, Elliott v. Fowler, 112 Ky. 376, 65 Did the legislature have this power? S. W. 849. It is further provided In determining this question, we in § 2031 of the Kentucky Statutes have not overlooked the fact, so that a guardian "may lease any real often declared by this court, that a legislative act will not be declared tation, the policy of the legislation

invalid unless the or the wisdom or the propriety of it Statute-when legislation was pro- is not for the judicial branch of the invalid.

hibited by the Con- government to decide. When the stitution, because the rule long pur- courts have exercised their jurisdicsued by this court, and generally tion in restraining the legislature observed by other courts, is that from transgressing constitutional there are no restraints upon the au- bounds, they have reached the limit thority of the legislative depart of their control. The people put in ment except those imposed by the the Constitution such limitations as Federal and state Constitutions. they wished to impose on the legisThus it was said in Johnson v. Hig- lative branch, and within these gins, 3 Met. (Ky.) 566, that "the limitations its activities are conduty, and sole duty, of this depart- trolled

trolled by the Constitution; but ment of the government, when the outside of them it may act with constitutional power of the legisla- a free hand, subject, of course, to ture to enact a law is questioned, is the restraint imposed by the Fedto look to the provisions of the Fed- eral Constitution. So that when the eral and state Constitutions, and if validity of legislation is challenged they do not, in express terms, or by in the courts, the inquiry is limited necessary and proper implication, to the questions, What provision of forbid the exercise of such power, the Constitution does it violate? the enactment must be adjudged What does it do, or propose to do, valid and enforceable as a law. Be- that the Constitution forbids?” yond the constitutional restrictions Therefore, whatever our opinion thus to be interpreted, the only lim

ly lim. might be as to the policy of this its upon the state legislature in legislation, we are not at liberty to enacting laws are its own wisdom, set it aside on the ground that it is sound judgment, and patriotism. unwise and detrimental to the best And it may be added that in doubt- interests of the citizens of the state ful cases, where it is not clear that to permit courts to take out of their the fundamental law has not been hands, when laboring under no disinvaded, courts rarely, if ever, in- ability, the power to manage and terfere to arrest the operation of control their own property. Forlegislative enactments. Respect for tunately, however, we think there the wisdom of a co-ordinate depart- can be found in the Constitution of ment of the government, as well as the state ample authority for holdsound policy, forbids such interpo- ing this legislation invalid. sition, except upon clear and satis- In the Bill of Rights, among the factory grounds."

great and essential principles of libAnd again in Com. v. Goldburg, erty and free government, we find 167 Ky. 96, 180 S. W. 68, we said: it declared that "all men are, by na"Laws cannot be disregarded mere- ture, free and equal, and have cerly because they are supposed to be tain inherent and inalienable rights, repugnant to some governmental

among which may be reckoned; principles that lie outside of consti

The right of seeking and tutional limitations. The Constitu- pursuing their safety and happition of this state, in $8 27 and 28,


The right of acquirdistributing the powers of govern

ing and protecting property. ... ment, confided to the legislative Absolute and arbitrary power branch the authority to enact laws,

over the lives, liberty and propand this authority the judiciary is erty of freemen exists nowhere not at liberty to interfere with un

in a republic, not even in the less the legislation violates directly largest majority.

Nor can or by necessary implication some he be deprived of his life, liberty or provision of the state or Federal property, unless by the judgment of Constitution. Subject to this limi- his peers or the law of the land:

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(180 Ky. 815, 203 8. W. 731.) No person shall, for the same early colonial days. A notable inoffense, be twice put in jeopardy of stance of an attempt to substitute his life or limb, nor shall any man's the legislative judgment for that of property be taken or applied to the proprietor, regarding the manpublic use without the consent of ner in which he should use and emhis representatives, and without ploy his property, may be menjust compensation being previously tioned. In the state of Kentucky at made to him."

an early day an act was passed to These provisions of the Bill of compel the owners of wild lands to Rights, which will be found in every make certain improvements upon Constitution of the state, bear them within a specified time, and it striking testimony to the high re- declared them forfeited to the state gard in which the people of the in case the statute was not comstate have always held the right to plied with. It would be difficult to acquire, enjoy, and dispose of prop- frame, consistently with the genererty. They placed it in the same al principles of free government, a class with life and liberty, and sur- plausible argument in support of rounded its use and enjoyment with such a statute.” the same safeguards; nor is it And our own court has added its singular that they should have done potent voice in support of this this, because in the whole history ancient and highly valued principle, of the world civilized people have in the following language, found in always recognized that the right of Davis v. Ballard, 1 J. J. Marsh. 563: the individual, free from disability, “The enjoyment of life, liberty, and to acquire, use, enjoy, and dispose of property, and the right to pursue his property, free from the control, happiness, embrace all the comforts restraint, or dominion of any other and pleasures which man's physiperson or set of persons, was in- cal, inteilectual, and moral nature is dispensable to the happiness of an capable of acquiring, by the applienlightened people. Thus Black- cation and exercise of the various stone, in his Commentaries, book 1, faculties with which he is endowed, page 93, in speaking of the absolute and all that the world can afford rights of persons, said: “And these him. The right to pursue happiness may be reduced to three principal includes the right to use all means or primary articles; the right of necessary for its attainment, by the personal security, the right of per- proper exercise of our faculties. sonal liberty, and the right of pri- The acquisition of property, to some vate property; because, as there is extent at least, is indispensable to no other known method of compul- our most limited ideas of happision, or of abridging man's natural ness.

Food and raiment are propfree will, but by an infringement or erty, and without food and raiment, diminution of one or other of these existence cannot be preserved many important rights, the preservation days. Whether our acquisitions of these, inviolate, may justly be shall be limited to a bare subsissaid to include the preservation of tence, or shall be multiplied to the our civil immunities in their largest accumulation of every luxury, will and most extensive sense.”

depend upon the degree of labor emAnd in equally strong, if less elo ployed, and the success of the busiquent, language, Cooley, in his Con

ness to which it may be directed; stitutional Limitations, page 475, but it equally results, whether we says: “The right of every man to

have much or little, that one of the do what he will with his own, not objects in the formation of the Coninterfering with the reciprocal right stitution was to secure the enjoyof others, is accepted among the

ment of that which we do possess fundamentals of our law. The in- and own.” stances of attempt to interfere with Many other authorities declaring it have not been numerous since the a like doctrine might be referred to,

but we deem it unnecessary to adult citizen of sound mind over his lengthen this opinion with citations property, unless sanctioned by the approving a sentiment that is the Constitution and laws made pur. common experience of mankind, suant thereto, is a denial of the and the effect of which is observed right of seeking and pursuing his by all of us in the everyday affairs happiness guaranteed by the Conof life. No man can fail to have stitution. noted how eager our people are to Keeping now in mind the exactacquire property, how tenaciously ing care with which Constitutions they hold it, and how bitterly they and courts have guarded the right resist even the most trifling hostile

of the citizen from any attempt to or unwelcome intrusion upon the

interfere with his exclusive enjoy. right; and so it is easy to under

ment of property owned, we may stand how necessary possession and dominion of property are to the stop here a moment to have clearly

before us just what this Act of 1916 happiness of the people, and how

does, as exhibited in the case we discontented the normal man would

have. Here are three infants, one be to find himself the owner of an estate, but without the right of pos- eighteen, years of age; they own

eleven, one sixteen, and the other session and control so dear to the

the fee-simple title, subject to a life desires and ambitions of manhood. Nor is this craving for dominion, estate, in a body of land in one of that is the natural inheritance of

the great coal-producing counties

of the state, the value of the coal in the race, to be satisfied by income received from the hands of another. which, we may say without exagWhat virile men want, in connec

geration, is many millions of dollars.

One of these infants in about two tion with property, is the pride and

years from now will have reached happiness that spring from ex

his majority; the other in about clusive control and the undivided right to do as they please with it; nine years, at which times each of

four years, and the other in about or as finely said by Blackstone in

them, free from any restraints, exbook 2, page 1: "There is nothing cept those imposed by the judgment which so generally strikes the imag- of the Pike circuit court, would ination, and engages the affection

come into the full possession and of mankind, as the right of prop- enjoyment of this enormously valuerty; or that sole and despotic do- able body of land, and each of them, minion which one man claims and when he had reached his majority, exercises over the external things would have the undisputed right to of the world, in total exclusion of

manage, control, and enjoy it to the the right of any other individual in

same extent as any other adult citithe universe."

zen of sound mind in the state Having its origin in the human would have the right to manage, feeling that perhaps found its first control, and enjoy his property. permanent expression in the Great But if the judgment stands, Jake, Charter, this love of sole dominion when he reaches his majority in has been handed down for centuries two years from now, and when he as a part of the heritage of every might reasonably expect to come free and civilized people. Influ

Influ- into the possession and enjoyment enced by conditions such as we have of his estate like any other citizen, attempted to set forth, the Consti- will find that shortly before he artution makers, from the beginning rived at age the circuit court of of the state, have put together in Pike county had leased his land, or the same class, and in the order at least the only valuable part of it, named, life, liberty, and property for a term of forty years, with the as the most highly treasured rights privilege on the part of the lessee of our people, and any interference to extend the lease for forty years, with the exclusive dominion of the so that Jake, if he lived to be a

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